The
Question
My daughter has a language impairment and has been on an IEP since
last year. She has had a rough year and was just suspended from school
for pushing another student into a locker. This is her second suspension
this year for fighting.

I think she's getting into these fights because she has so much trouble
understanding how to use words in tense social situations.

Does the school have to provide her any educational services while
she is suspended? The Vice Principal told us he's considering expelling
my daughter. Can the school system do that?

The
Answer

Your
daughter's rights are governed by the 2004 amendments to IDEA concerning
suspension or expulsion of children with special educational needs.
(These provisions are found mostly at 20
U.S.C. § 1415(k).

The law states explicitly that a free appropriate public education
("FAPE") must be available to all children with disabilities,
"including children with disabilities who have been suspended
or expelled from school." (20 U.S.C. §1412(a)(1)(A)). Your
daughter is certainly entitled under this law to continue to receive
an appropriate education if she is suspended for any time beyond 10
days. See 34 CFR 300.530 in regard to "ten day" suspensions.
Be sure to read the IDEA
Regulations about discipline at 34 CFR 300.530-537.

There are certain behaviors for which a school system can change a
student's placement to an "interim alternative educational setting"
for up to 45 school days. This is so if
the student carries a dangerous weapon to school or a school
function, knowingly possesses, uses, sells or attempts to sell illegal
drugs at school or at a school function, or has inflicted serious bodily injury upon another while at school or at a school function. (§1415(k)(1)(G))

A
school department can also try to convince a hearing officer in your
state's special education due process system to order an interim alternative
educational placement for up to 45 days by proving that maintaining
the child in her current placement "is substantially likely to
result in injury to the child or to others." (§ 1415(k)(3)(A))

In either case, any alternative educational placement for up to 45 days
under these provisions must provide FAPE. Accordingly it must be designed
to "enable the child to continue to participate in the general
curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP." (§ 1415(k)(1)(D)

The
placement must also include services to address the behavior for which
the student is being suspended in the first place. (A home tutoring
program would not normally satisfy these requirements, though if the
only alternative is a program for students with severe emotional /
behavioral disabilities, sometimes a parent is faced with either accepting
an inappropriate home-bound instruction program or placement in a
volatile setting with an inappropriate peer group. If it is feasible
to use the expedited hearing process, described below, it may be best
to accept home tutoring while contesting the matter.)

The
behavior of which your daughter has been accused does not fall into
the categories that would allow the school system to move her to an
alternative 45-day setting since there was apparently no dangerous
weapon or drugs involved. While the school could try to convince a
hearing officer that she represents a danger to herself or others,
it would be unlikely to succeed. It is easy to think of steps the
school system could take to "minimize the risk of harm in the
child's current placement." Ordinary security measures in the
halls, a peer mediation program, the assignment of an aide, and/or
modifications to your daughter's IEP are some of the options that
might be considered.

Long
term Suspensions or Expulsions

Most importantly, a school system cannot impose a long-term suspension
or expel a student with special educational needs if the behavior
for which s/he is being disciplined was a "manifestation"
of his or her disability. (§1415(k)(4)(B),(C)) IDEA provides
that the IEP team must find that behavior was a manifestation of the
child's disability if:

the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.

If
either of these circumstances applies, the IEP team must correct the
IEP or its implementation and, except for the 45-day provisions I
described earlier, the school cannot legally suspend the student
beyond ten days. If the team finds that the behavior is not a
manifestation of the child's disability, the school can suspend longer
than ten days as it can a student without a disability, but must still
provide ongoing education under his/her IEP during the suspension.

Functional
Behavioral Assessment & Behavioral Intervention Plan

In
addition to, or as part of, this review (and regardless whether the
behavior is found to be a manifestation of the child's disability),
the school system must conduct a "functional behavioral assessment"
and develop or modify a behavioral intervention plan as necessary
to address the behavior for which the student is being disciplined.
(§ 1415(k)(1)(D))

What
You Can Do

In
your daughter's case, you will want to be sure that the IEP team evaluates
the link between her language processing difficulties and her behavior
in stressful circumstances with peers when she does not understand
social cues or how to use words rather than physical aggression.

The
school should also perform a behavioral assessment to see what strategies
will help your daughter recognize and re-channel feelings of anger
or frustration. She might benefit from a social skills group for students
with similar language impairments. If so, that service should be added
to her IEP.

Parents
are entitled to an expedited hearing if they appeal either a finding
that their child's behavior was not a manifestation of his/her disability
or a placement decision made under the suspension/ expulsion provisions.
(§ 1415(k)(4))

Unless
the child is properly moved to a 45-day alternative placement, s/he
is entitled to remain in the current educational placement. If s/he
has been properly moved to an alternative placement, that is where
s/he must remain until either the hearing officer orders a change
or the assigned time period for the interim placement expires.

Student
Rights

The
rights I have discussed here apply to students who are already identified
as having special educational needs.

Importantly, the law also applies to students who the school system
knew or should have known have disabilities. IDEA treats a school
system as "knowing" about a disability for these purposes
if:

a
parent expressed concern that his/her child needs special education
(this must be in writing unless the parent is illiterate or unable
to write because of a disability);

a parent requested an evaluation of his/her child; or

a
teacher or other school employee has expressed concern about behavior
or performance to other school staff. (§1415(k)(5)(B))

Also, even
if the school system is not deemed to have "knowledge" of
a disability, parents can request an evaluation when their child is
being suspended or expelled, which must be expedited. (§ 1415(k)(5)(D)
In that case, however, the child must remain in whatever placement is
determined by the school pending the outcome of the evaluation.

Obviously,
these provisions are very complex and the stakes are high.

Moreover, the inter-relationship between these federal requirements
and a state's own laws and regulations concerning student discipline
will raise many questions. (For example, if a state tries to use a broader
definition of "dangerous weapon" than applies under the provisions
allowing 45 day interim placements, it may be held that the state's
requirements must give way to the federal. It has been held that a state
can adopt greater protections for children with special education needs,
but not lesser. See David D. v. Dartmouth School Committee, 775
F.2d 411 (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986).

If your
child is faced with long-term suspension or expulsion you should consult
with an expert in special education law to be certain that her rights
are protected and that the school system does not lose sight of your
child's educational needs in its effort to enforce discipline.

Caselaw:
The complete text of the U. S. Supreme Court discipline case, Honig
v. Doe, can be found on pages 369-381 of Wrightslaw:
Special Education Law, 2nd Edition.
Editor's Note:
Mr. Crabtree wrote the original article soon after IDEA-97 was enacted. IDEA was re-authorized in 2004 and this article has been edited to reflect the current statute. The
statute and regulations are difficult to read and understand. Many courts
have taken different, sometimes opposite interpretations of a word or
phrase in a particular statute or regulation. To understand this law
in your state, get your state special education regulations and read
the leading cases in your state and judicial
circuit.

Meet
Robert Crabtree
Bob Crabtree is a partner at Kotin,
Crabtree, and Strong, LLP, a general practice law firm in
Boston, MA. Among other areas of practice, Bob concentrates in special
education and disability law.